Lead Opinion
OPINION OF THE COURT
This en banc сourt is presented with two cases consolidated on appeal. In the first case, Herbert Bendolph appeals from an order of the District Court which dismissed his motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255 (“ § 2255 motion”) as untimely. In the second case, Julio Otero appeals from an order of the District Court denying him appointed counsel for an ineffectiveness of counsel evidentiary hearing held pursuant to his § 2255 motion. The District Courts had jurisdiction over these matters pursuant to 28 U.S.C. §§ 1381 and 2255. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2255.
Both cases raise issues concerning whether, under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), courts may raise the timeliness of § 2255 motions sua sponte, and, if so, under what circumstances. Neither case falls within the summary dismissal period of Rule 4 of the Rules Governing Section 2255 Cases for the United States District Courts (“Rule 4 period”) because in both cases the government has filed answers that did not raise the AEDPA statute of limitations as a defense.
We asked the parties and amici
For the reasons discussed herein, we answer the first, second, and fourth issues in the affirmative. As to the third, we answer by concluding that (i) during the Rule 4 period, after giving notice and an opportunity to respond,
I.
The relevant facts of these cases may be summarized as follows. A jury in the United States District Court for the District of Delaware convicted Herbert Ben-dolph of being a felon in possession of a firearm. We affirmed his conviction,
A year later, on October 18, 1998, Ben-dolph filed a pro se motion under 28 U.S.C. § 2255. This too was untimely: Bendolph was obligated under the AEDPA’s one-year statute of limitations to have filed his motion by August 4, 1997, one year from the date on which the 90 day period to file a petition for ceHiorari had ended. See U.S.Supr. Ct. R. 13; Kapral v. United States,
One year later, on August 24, 2000,
In the second ease, Julio Otero pled guilty to operating a continuing criminal enterprise in violation of 21 U.S.C. § 848(a). On May 27, 1998, the United States District Court for the Middle District of Pennsylvania sentenced him to life imprisonment.. In accordance with his plea agreement, Otero did not appeal his conviction. On June 25, 2001, Otero filed a pro se § 2255 motion challenging the validity of his sentence on several grounds, including ineffective assistance of counsel. The government filed its answer on September 17, 2001. It did not raise the AEDPA’s statute of limitations as a defense.
The District Court initially denied all of Otero’s claims except his ineffective assistance of counsel claim, for which an evi-dentiary hearing was scheduled. The District Court did not appoint counsel to represent Otero at that hearing, and denied his сlaim on the merits. Otero argues on appeal that (i) the District Court erred in failing to appoint counsel for him at his evidentiary hearing, and (ii) neither the District Court nor the government may raise the AEDPA statute of limitations issue on remand because the government has waived the defense.
We turn first to the District Court’s decision not to provide counsel to Otero at his ineffective assistance of counsel evidentiary hearing. Rule 8(c) of the Rules Governing Section 2255 Cases requires that “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel ... [as an indigent].” The appointment of counsel is clearly mandatory for an indigent petitioner. See United States v. Iasiello,
III.
A.
We now turn to the four main issues, supra, before us in these consolidated appeals. The analysis of the AEDPA statute of limitations issue, which in these two cases involves undisputed facts, is subject to plenary review. See, e.g., Long,
As we observed in Long, our analysis necessarily begins with Robinson,
[F]irst ... because the statute of limitations is not jurisdictional in nature, see Miller v. New Jersey State Dep’t of Corr., 145 F.3d [616], 617-18 [ (3d Cir.1998) ], the state may waive the defense .... [W]e then considered whether Federal Rule of Civil Procedure 8(c) requires that a defendant plead ... a statute of limitations[ ] in its answer.... We explained: “Parties are generally required to assert affirmative defenses early in litigation, so ... prejudice may be avoided[ ] and judicial resources may be conserved. Habeas proceedings are no exception.” ... We further emphasized: “The purpose ... is to avoid surprise and undue prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed.”....
[We then] held that “a limitations defense does not necessarily have to be raised in the answerf,]” [but] must be raised “as early as practicаble” thereafter.... What the earliest practicable or possible or feasible moment might be in another case ... we necessarily left open.
Long,
[ Our prior cases including Robinson ] counsel that, whether a habeas petitioner has been prejudiced by the assertion of the AEDPA statute of limitations defense after an answer has been filed is the ultimate issue, and that prejudice turns on such factors as how late in the proceedings the defense was raised, whether the petitioner had an opportunity to respond, and whether the respondent acted in bad faith .... Delay is related to prejudice but was not a problem here, and inadvertence does not equal bad faith.
Id. at 401 (internal citations omitted). We held that Long was not prejudiced by the government’s delay in raising the limitations defense, which it had done through its express endorsement of the Magistrate Judge’s analysis of the timeliness issue. We then concluded that the District Court did not abuse its discretion by construing the government’s filing as an amendment to its answer. Id. at 401.
Addressing the Magistrate Judge’s sua sponte flagging of the limitations issue, we said:
Our answer to [this issue] was foreshadowed by Banks v. Horn,271 F.3d 527 , 533 n. 4 (3d Cir.2001), rev’d on other grounds,536 U.S. 266 ,122 S.Ct. 2147 ,153 L.Ed.2d 301 (2002) .... In a footnote ... we expressed the view that a court of appeals could address the AED-PA statute of limitations defense sua sponte even if the habeas respondent had waived the issue on appeal. We wrote:
“Even if not raised, we believe we could consider the issue sua sponte .... The Court has the power to notice a ‘plain error’ though it is not assigned or specified .... In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.”
Thus we observed prior to Robinson that the AEDPA statute of limitation is an important issue, the raising of which may not necessarily be left completely to the state.
Long,
our decision in Robinson ... does not prevent a magistrаte judge from raising the AEDPA statute of limitations defense sua sponte even after an answer has been filed.
Long,
Fundamental to our analysis was (i) our agreement with the Second Circuit that “[w]hile civil in nature, habeas corpus cases are different from ordinary civil cases where only the interests of the parties are involved,” Long,
We rejected two decisions contra, Scott v. Collins,
[ hjaving in mind that AEDPA’s statute of limitations, like other procedural ha-beas issues, furthers the principles of comity, finality, and federalism, ... we hold further that a federal magistrate judge may, consistent with Robinson v. Johnson ... raise sua sponte the AED-PA statute of limitations defense even after an answer has been filed.
Long,
With the analytical framework of Robinson and Long in mind, we turn to the questions before us.
B.
We must first address whether our decisions in the Long and Robinson § 2254 cases apply to the § 2255 cases before us today. In resolving the question, we are mindful of our obligation to be faithful to the intent of Congress’ 1996 habeas corpus reforms. Congress was cognizant not just of the practical realities of habeas filings, but also the spectrum of federal interests that those realities implicate, as evidenced by “the profound societal costs that attend the exercise of habeas jurisdiction.” Calderon v. Thompson,
We have similarly recognized the wide spectrum of interests that Congress intended to protect through habeas reform. See, e.g., Long,
It is thus clear, we believe, that Congress’ intent with respect to habeas reform — one facet of which is the AEDPA statute of limitations — was not limited to interests of federalism and comity, which apply only to petitions filed under § 2254. Rather, Congress was concerned with abuses of, and the interests implicated by, habeas filings under both §§ 2254 and § 2255.
Second, to provide guidance to the district courts, as well as to avoid confusion, we have previously held that we should treat § 2255 motions and § 2254 petitions the same absent sound reason to do otherwise. See, e.g., Miller,
Third, such an approach is consistent with the interests served by statutes of limitations generally. Limitations periods “protect defendants and the courts ... United States v. Kubrick,
C.
We return to the four main issues we asked the parties and amici to brief.
(1) With regard to the government’s ability to waive the AEDPA statute of limitations, all of the parties and both amici agree that, under our decisions in Miller, Robinson, and Long, discussed supra, the limitations period is not jurisdictional and therefore is subject to equitable considerations such as waiver. We accordingly reaffirm our holdings on these issues in these cases.
The more difficult question, which we address infra, remains: whether a party’s waiver of a defense, intentional or not, may impact the exercise of an inherent power that a court may possess in the circumstances presented here. We foreshadow our answer by observing that neithеr the parties nor amici have cited to us authority requiring that a party’s waiver of a defense must necessarily curtail the inherent powers of a court.
(2) As to the second main issue, whether courts ever have the power to act sua sponte in the circumstances here, the answer is plainly yes. First, as we have discussed supra, the eases confirm, in similar contexts, an analogous power. See, e.g., Granberry,
Second, while two circuits disagree with our conclusion in Long as to when a court may act sua sponte, all of the courts of appeals that have considered the issue agree that courts do possess a sua sponte power to raise the limitations issue. See, e.g., Hill v. Braxton,
The decisions contra to our decision in Long with respect to when a district court may sua sponte raise the limitations issue do not suggest that courts lack the inherent power in the first place. See Herbst v. Cook,
As we discussed supra and first articulated in Long, the interests underlying the AEDPA’s statute of limitations that are applicable to § 2255 motions are furthered, not hindered, by courts exercising discretionary power sua sponte in post-answer cases such as those before us here. See Long,
Finally, we consider the argument contra, a thumbnail sketch of which is this: Habeas cases are civil, governed by the Federal Rules of Civil Procedure. As such, the AEDPA statute of limitations must be treated like any other in a civil
The argument plainly rests on the premise that habeas cases and ordinary civil cases are indistinguishable, something we disagreed with in Long and do so again today. See, e.g., Harris v. Nelson,
As to the claim that the AEDPA statute of limitations is the government’s alone to use or lose, we have found no authority supporting such exclusivity. Certainly, we have been cited to none. As such, we must doubt that Congress intended to relegate the efficacy of its reforms to the vagaries of a prosecutor’s decisions or mistakes.
For all of these reasons, we reaffirm Long and hold that courts have the power to raise the AEDPA limitations issue sua sponte in cases arising under 28 U.S.C. §§ 2254 and 2255.
(3) What remains are our final two main issues and their application to the cases before us. For analytical purposes, they may be combined: Given the courts’ power to raise the AEDPA statute of limitations sua sponte, at what stages may they do so, and does it matter if the government has waived?
We hold the answer is once again provided by our decision in Long. Our analysis there presents no obvious reason why, given notice and an opportunity to respond,
The above considerations, which we fully articulated in Long, are no less persuasive in instances where the government has either waived the limitations defense or so concedes. Not only are habeas cases different, but, as for the AEDPA limitations provision, the government can claim no monopoly on its use.
To conclude otherwise asks too much of waiver, which occurs only upon the “ ‘intentional relinquishment or abandonment of a known right.’ ” United States v. Olano,
[District judges often will not be able to make [AEDPA limitations] calculations based solely on the face of habeas petitions .... [As] [s]uch calculations depend on infоrmation contained in documents that do not necessarily accompany the petitions.
Pliler v. Ford,
(4) With these' precepts in mind, we turn to the cases before us. In Bendolph, a judgment entry of this Court was intentionally and impermissibly altered by someone involved in filing Bendolph’s petition for a writ of certiorari, to conceal the untimeliness of a Supreme Court filing. Such an act should not, of course, be countenanced in any way. Without doubt, the ability of a court to, deal with such a circumstance is inherently within its sua sponte powers, and doеs not depend on the responding party’s position.
The issue before us, however, is whether the District Court could raise the AEDPA limitations issue on its own motion, and, if so, whether the exercise of that power was limited by a government waiver. For the reasons we have discussed above, we conclude that the District Court did possess the power to flag the issue sua sponte, and that even if the government’s actions did constitute waiver, that waiver could not have limited the court’s exercise of its power.
The questions remaining are (i) whether the District Court provided Bendolph with adequate notice of the issue and an opportunity to respond, and (ii) whether Bendolph was prejudiced by the District Court’s motion. The record shows that the District Court’s August 24, 2000 order placed both Bendolph and the government on notice, both by raising the timeliness issue and by articulating the reasons why Bendolph’s filing appeared untimely. In that same order, the District Court expressly invited the parties to brief or otherwise respond to its analysis. Bendolph was given until September 21, 2000 to respond. That the District Court’s order constituted sufficient notice and provided sufficient time and opportunity to respond is evidenced by the fact that Bendоlph filed his memorandum in response two weeks early, on September 8, 2000. The District Court subsequently received a letter submission from the government on October 5, 2000. It then denied Ben-dolph’s § 2255 motion as untimely about three months later, on January 3, 2001. On these facts, we hold that Bendolph was provided adequate notice of the timeliness issue, as well as adequate opportunity to respond.
Because the District Court flagged timeliness after the Rule 4 period had ended, we must next consider “the ultimate issue,” prejudice to Bendolph. Long,
No prejudice arising from the District Court’s sua sponte flagging of the issue, and notice and an opportunity to respond having been shown on this record, we affirm the District Court’s dismissal of the § 2255 motion in Bendolph as untimely.
This leaves Otero. We have already reversed and remanded for failure to appoint counsel, as discussed supra. As to the remaining issue of whether the District Court may consider the apparent untimeliness of Otero’s § 2255 motion sua sponte on remand, we answer in the affirmative, provided the District Court gives notice, an opportunity to respond, and a prejudice analysis consistent with this opinion and our prior decision in Long.
D.
In conclusion, we hold that, upon finding a potential AEDPA statute of limitations problem in a habeas case arising under 28 U.S.C. §§ 2254 or 2255, a court may act sua sponte at any point in the proceedings, regardless of the government’s position, provided the court (i) gives notice of the issue and an opportunity to respond; and, (ii) if the case has passed the Rule 4 stage, also analyzes the prejudice components of Rule 15(a) and Long that we reaffirm today.
Notes
. Judge Van Antwerpen wrote the opinion of the Court in which Chief Judge Scirica and Judges Roth, Rendell, Barry, Smith and Fisher joined. Judge Nygaard filed an opinion concurring in part and dissenting in part, in which Judges Sloviter, McKee, Ambro, and Fuentes joined. Judge Sloviter filed an opinion dissenting, in which Judges Nygaard, McKee, Ambro, and Fuentes joined.
. We acknowledge the consistently excellent advocacy provided by pro bono counsel on
.Although the court may act upon what plainly appears from the motion, attached exhibits and record, not all limitations issues may appear in such manner. As such, notice and an opportunity to respond should be afforded during the Rule 4 stage. See footnote 15 infra.
. The Supreme Court subsequently denied the petition for writ of certiorari on October 20, 1997.
. Bendolph did not get the benefit of tolling for the time the petition was under consideration by the Supreme Court because the petition was untimely and therefore not properly
. At the time this answer was filed, we had not yet rendered our decision in Kapral.
. Although the District Court docket sheet and the parties cite August 24, 2000 as the date of the District Court’s order, our review of the record shows August 22, 2000 as the date of that order. The discrepancy does not affect the issues now before us.
. The government initially conceded waiver in Bendolph, but now contends under Long, which we had not yet rendered at the time these cases were first argued, that waiver has not yet occurred.
. The statute of limitations issue was first raised on August 19, 2003 when a panel of this Court entered an order granting Otero a certificate of appealability.
. As in Bendolph, the government in Otero initially conceded waiver but has now reversed its position in light of our decision in Long.
. See also 141 Cong. Rec. S7803-01 (daily ed. June 7, 1995) (statement of Sen. Nickles) ("[H]abeas procedures are wasteful. The current system is wasteful of limited resources. At a time when both State and Federal courts face staggering criminal caseloads, we can ill afford to make large commitments of judicial and prosecutorial resources to procedures of dubious value iri furthering the ends of justice.”); Williams,
. This conclusion is further reinforced, of course, by the purpose underlying Rule 4 of the Rules Governing Section 2254 and 2255 Cases, which promotes interests of judicial economy and efficiency.
. Moreover, limitations periods should be construed consonant with the legislative scheme they support. See, e.g., American Pipe & Const. Co. v. Utah,
. In addition to the powers Granberry observed, courts may dismiss sua sponte for other reasons as well. See, e.g., Acosta,
Analogously instructive is the Supreme Court's decision in Link v. Wabash R. Co.,
. Thus it cannot be dоubted that, at the very least, courts possess a sua sponte power during those stages of a habeas case governed by Rule 4 of the Rules Governing Section 2254 and Section 2255 Cases. That rule states in pertinent part:
If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.
See § 2255 Rule 4(b); see also § 2254 Rule 4. As this language anticipates, the issues relevant to timeliness may not all appear on the face of a motion or petition, and for this reason courts should give notice that a limitations problem may exist, as well as provide an opportunity for a habeas movant or petitioner to respond. See, e.g., Hill v. Braxton,
. For this reason, federal habeas courts acting sua sponte need not invite the government to amend an answer pursuant to Rule 15(a), nor wait to see if the government responds. See also Carlisle v. United States,
. If nothing else, if the power exists, there is nothing to suggest that Congress has taken it away. While Congress may limit the courts' inherent powers, we should not "lightly assume that Congress intended to do so." Chambers v. NASCO, Inc.,
. Although we have not yet had occasion to reach the question, other courts of appeals have held the AEDPA statute of limitations constitutional in the face of per se challenges brought under the Suspension Clause of the United States Constitution, Art. I, § 9, cl. 2. See, e.g., Wyzykowski v. Dep’t of Corr.,
. For these reasons, as a matter of elapsed time, the first practicable chance to knowledgeably raise a timeliness issue often arises later in the life of a habeas case than it would in an ordinary civil one. Thus we have already recognized the need for a longer pre-waiver period in habeas. See Robinson,
. We do not reach the issue of whether the government's actions constituted an inadvertent waiver, intentional waiver, or no waiver because, no matter the answer to that question, the court possessed the ability to act sua sponte.
. At the time, we had not yet rendered our decision in Kapral, supra, and in any event the petition for certiorari had been improperly altered.
. Although the issue has not been raised before us, it appears that the delay in Otero may exceed that in Bendolph and Long, as Otero filed his § 2255 motion on June 25, 2001. As noted, delay alone is not dispositive and must be considered along with the other components of prejudice that we identified in Long and reaffirm today.
.We leave for another day whether or not a district court may apply the statute of limitations if the government has intentionally waived this defense and continues to do so after the district court has raised the issue.
Concurrence Opinion
with whom Judges SLOVITER, MCKEE, AMBRO and FUENTES join, concurring in part and dissenting in part.
I concur with the majority that we must reverse the dismissal of Otero’s ineffective assistance of counsel claim аnd remand for the District Court to decide whether Otero is indigent and qualifies for appointed counsel. I concur with the majority that, subject to notice and an opportunity to be heard, a district court may dismiss a habe-as petition sua sponte as part of its preliminary consideration pursuant to Rule 4 of the rules governing both section 2254 and section 2255 cases. I also concur with the majority that the one year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2244(d)(1), 2255, is subject to waiver as a defense by the government. See Robinson v. Johnson,
I.
As an initial matter, I would remand Bendolph’s petition for a factual finding on the equitable tolling claim he raised on appeal. As explained by the majority, the Clerk of the Supreme Court mistakenly filed Bendolph’s untimely petition for cer-tiorari because the date on the copy of our judgment entry had been altered, making the petition appear timely. Because the Clerk did not reject his certiorari petition as untimely, Bendolph believed, in error, that AEDPA’s statute of limitations did not begin to run on his habeas petition until one year from the date the Supreme Court denied certiorari. Bendolph, therefore, did not file his habeas petition within one year of the date his conviction actually became final as AEDPA requires. See 28 U.S.C. § 2255. On appeal before the panel, he argued that the mistaken filing of his certiorari petition by the Clerk of the Supreme Court is grounds for equitable tolling of AEDPA’s statute of limitations. Because it is unclear who altered the record, we cannot know whether equitable tolling is appropriate and we should remand for further factual findings.
AEDPA’s statute of limitations is subject to equitable tolling. Fahy v. Horn,
Like in Nora, a remand is presently appropriate. Although it is unclear who altered the date on this Court’s judgment entry, the alteration misled the Clerk of the Supreme Court to believe that Ben-dolph’s petition for certiorari was timely. It is entirely possible that the alteration is the result of clerical error. Indeed, there is no evidence in the record that Ben-dolph’s federal public defender altered the document herself, innocently or otherwise. Nor is there evidence that she purposefully or knowingly submitted an altered document to the Clerk of the Supreme Court. If the federal public defender altered the document, her actions would be sufficiently serious to constitute an “extraordinary” prevention of Bendolph’s ability to assert his rights that would merit equitable tolling. I believe it patently unfair of the majority to acknowledge the altered date and then simply affirm the District Court without permitting Bendolph the opportunity to show that he was misled into believing he had time to file his habeas petition. Because the record does not permit us to determine who is responsible for the alteration, we should remand for the District Court to make factual findings, and for it to determine whether the statute of limitations should be tolled. Under these circumstances, there is a possibility that Bendolph’s petition was indeed timely.
II.
In the event the petitions were untimely, Rule 5(b) of the Rules Governing Section 2254 Cases in the United States District Courts requires that an answer to a habe-as petition “must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.” Section 2254 Rule 5(b) (emphasis added).
At the time of the amendment, the Courts of Appeals for the Sixth, Ninth, and Eleventh Circuits had addressed the effect of the government’s failure to raise the AEDPA statute of limitations in its answer on a district court’s authority to subsequently raise the issue sua sponte. In Scott v. Collins,
Underlying the Scott and Nardi decisions is the rule that generally it is not appropriate for a court to sua sponte raise non-jurisdictional defenses not raised by the parties. See Acosta v. Artuz,
We should decline tо raise non-jurisdictional defenses for another reason as well: fairness to the other party. Typically, it is not fair for courts to act as surrogate counsel for one side but not the other. See United States v. Pryce,
Of course I acknowledge that there are exceptions to this rule of restraint. The Supreme Court has held that, in the interests of comity and federalism, courts may raise a habeas petitioner’s failure to exhaust state remedies sua sponte, even if the government does not. Granberry v. Greer,
■ Initially, the Long Court noted that in considering the values beyond the interests of the parties served by AEDPA’s statute of limitations, comity and federalism are the “most important[ ].” Long,
Similarly, judicial efficiency and economy are not implicated by a post-answer sua sponte dismissal pursuant to AEDPA’s statute of limitations. If a district court reviews a petition for deficiencies pursuant to Rule 4 and does not dismiss it, and the government then fails to raise the statute of limitations, the parties and the court begin to expend time and effort on the merits of the petition. At this point, judicial efficiency and economy are already lost. The very purpose of affirmative defenses, such as the statute of limitations, is to conserve judicial resources by requiring the parties to raise them early in the proceedings. Robinson,
The majority makes a great deal of the interests of finality AEDPA was enacted to serve. There is no doubt that habeas corpus “presents a tension between the desire for finality, an end to the proceedings, and a desire to provide the chance for revisions, especially to correct errors.” Erwin Chemerinsky, Thinking About Habeas Corpus, 37 CASE W. RES. L. REV. 748, 789 (1987). As Professor Chemerin-sky has pointed out, “[tjhere obviously must be finality at some point; a time when the defendant has had sufficient opportunities for review and the chances of finding an error are tоo remote to justify further expenditure of resources.” Id. But on the other hand, conviction of the innocent or conviction in violation of the Constitution should not be tolerated. See id. Even those who have strongly emphasized a preference for curbing the scope of habe-as corpus have acknowledged that “conventional notions of finality” have diminished significance in the context of habeas. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142, 150 (1970) (quotation omitted).
At the earliest, AEDPA’s statute of limitations begins to run when a prisoner’s conviction becomes final, upon the conclusion of direct review. See 28 U.S.C. §§ 2244, 2255. Indeed, it may well not begin for decades if, for instance, the petitioner relies on a retroactively applicable rule of constitutional law as recognized by the Supreme Court. 28 U.S.C. §§ 2244(d)(1)(C), 2255. Moreover, AED-PA’s statute of limitations is subject to equitable tolling. Fahy,
“In our adversary system, it is enough for judges to judge.” Dennis,
A.
Even if a sua sponte dismissal of the petitions in this case would serve values beyond the interests of the parties, I would still dissent because of the damage dismissal would work upon two countervailing values the majority fails to consider: the related notions of waiver and fundamental fairness.
The majority’s decision renders the concept of waiver a nullity. We held in Robinson,
As for the issue of fairness, Pliler v. Ford,
While one might argue that it is the pro se habeas petitioners — who are without the assistance of trained counsel — who need to be warned by district courts of AEDPA’s labyrinthine pitfalls most of all, the Court’s decision in Pliler is clear: district courts may not act as de facto counsel in habeas proceedings. Fairness dictates that we apply this rule equally to both sides, but the majority does not. The majority permits a district court to act as de facto counsel for the government, working together toward the common goal of dismissal of the petition. That is unfair. A habeas petitioner gets no help .from the courts, and the government needs none either. If, as Justice Thomas explained in Pliler, calculating the statute of limitations is a job ordinarily reserved for trained counsel, then that job should be left in the able hands of the government’s attorneys. Any other rule contravenes the fundamental notion that “the judiciary is on no side.... We judges must be strictly neutral with respect to all cases that come before us.” Pryce,
The Court today permits and perpetuates a double standard. Cf. Latorre v. United States,
B.
Habeas corpus is not a luxury or an extravagance to be tolerated only when convenience permits. It is a fundamental protection of liberty “against arbitrary and wrongful imprisonment” that predates these United States. Chemerinsky, at 749. The Framers viewed it as “the highest safeguard of liberty,” Smith v. Bennett,
I constantly counsel myself and my-law clerks that somewhere in the mass of usually convoluted, often marginally-comprehensible pro se habeas petitions, there is another Clarence Earl Gideon, or one of the other faceless names for whom we do issue the Great Writ. Searching for those meritorious petitions is not only our duty, it is one of our most important. I am not alone in believing that the writ of habeas corpus may be the single most significant protection of individual rights in the Constitution. See Chemerinsky, at 749. I am simply adding my voice to the chorus. While technically the writ exists only as a procedural device, “its history is inextricably intertwined with the growth of fundamental rights of personal liberty.” Fay v. Noia,
. Although Rule 5(b) of the Section 2255 Rules does not require the government to state whether any statute of limitations applies, as the majority points out, "we have followed the practice, whenever we decide an AEDPA issue that arises under § 2254 and the same holding would analytically be required in a case arising under § 2255, or vice versa, of so informing the district courts.” Miller,
. The Federal Rules of Civil Procedure may be made applicable to habeas cases "to the extent they are not inconsistent with any statutory provisions or [the Habeas] rules.” Sec
. In United States v. Otero, 02-2624, counsel for the United States stated during oral argument before the panel: “We waived the statute of limitations. There’s no question under this Court's Robinson decision that we waived the statute of limitations.” (Oral Argument Tr. at 36). Similarly, in United States v. Bendolph, 01-2468, counsel for the United States explained, "we waived the statute of limitations.” (Oral Argument Tr. at 56).
. Incidentally, had Congress wanted to protect AEDPA’s statute of limitations from waiver, it could have done so by statute as it. did for the defense of failure to exhaust state remedies. Pursuant to 28 U.S.C. § 2254(b)(3), "[a] State shall not be deemed to have waived the exhaustion requirement ... unless the State, through counsel, expressly waives the requirement.” Congress has afforded the defense of AEDPA's statute of limitations no such protection, and even if it had, counsel for the United States explicitly waived the defense in each of these consolidated cases. The majority simply excuses that waiver, instead vesting in the district courts the discretion whether to raise the statute of limitations sua sponte in any given case. That grant of authority is likely to create vast disparities concerning the treatment of government waiver between judges and from one case to the next. Those disparities will in turn be visited upon petitioners.
.Indeed, courts routinely dismiss petitions, standing upon mere punctilios in the law.
. I do not believe my colleagues in the majority intend to be less principled or less fair than I. I do believe, however, that the majority sacrifices a little of both principle and fairness at the altar of expedience. Courts have admittedly crowded dockets. Those dockets include many habeas petitions, and I fear that the petitions with merit are outnumbered by those without. Any rale that would permit district courts to more easily dispose of habeas petitions might therefore seem desirable. But when individual liberty is at stake — as is the case with any habeas petition — expedience and self-interest ought not inform our decisions.
Dissenting Opinion
with whom Judges NYGAARD, MCKEE, AMBRO and FUENTES join, dissenting.
I join Judge Nygaard’s dissent but wish to note additionally that the opinion in Long v. Wilson,
The only effect of holding that the Government (or the Commonwealth in an appropriate case) waived its statute of limitations defense is that the matter will proceed on the merits. If the petitioner cannot show that his or her constitutional rights have been violated, the District Court will undoubtedly grant summary judgment for the Government in short order. If the petitioner has sufficient evidence of a violation of his or her rights, then the purpose of the habeas corpus statute will have been fulfilled.
Unlike the majority, I do not believe that “the public interest and the public reputation of judicial proceedings” will suffer if this court holds the Government to its waiver of the statute of limitations. Maj. Op. at 166. Indeed, it should only enhance its reputation by applying the